The Status Of A Fetus In Halacha (Part IX)

To briefly review, the Rambam associates the fetus with a rodef when explaining why one is allowed to sacrifice a fetus in order to save the life of its mother. Thus, to explain the reasoning of the Rambam, we are now exploring the sugya of “rodef” and why one is allowed to kill a rodef.

Previously, we suggested three main approaches for why one is allowed to kill a rodef and begun exploring several important nafka minos regarding these three approaches. We will now continue, suggesting several more important nafka minos:

4. Killing the Rodef with Sayif (execution by the sword)

The Mishna (Sanhedrin 9:1) states that a murderer receives his death penalty via sayif (execution via sword, one of the four methods that a Jewish court would carry out a capital punishment).

The Ran (Sanhedrin 72a), as well as the Mei’ri, suggest that when one is trying to kill a rodef, they should try their best to kill him through sayif, as this is the correct method of execution that he deserves. However, the Ran continues to say that if this is not possible, you can kill the rodef with any other means possible in order to save the nirdaf.

At first glance, it appears as if the Ran is taking the opinion that a rodef is chayiv missah because it is as if he already performed the act of the murder. After all, why else would he think you need to execute him with the specific missah one receives for having already performed a murder?

However, the actual wording of the Ran is that a “stam missah” (standard death penalty) is performed through sayif; thus, one could argue that even if the reason we kill the rodef is either to prevent him from violating the aveirah of murder or to save the nirdaf (or as a “din rishus ha’gavrah” and a punishment for the attempted murder), this would still qualify as a standard “stam chiyuv missah” and would therefore require sayif as the ideal mechanism of carrying it out.

5. Treifah

The halacha is that if one kills a treifah (loosely defined as one who will die within the upcoming year because of a physical problem), they are not chayiv missah. There are two possible reasons for this:

1. A) It is not considered murder.
2. B) It is considered murder, but it is a less severe (chamur) form of murder (since they were going to die anyways).

Thus, the question becomes as follows: if a rodef is attempting to kill a treifah, would we allowed to kill the rodef in order to save the treifah?

One can likely argue both ways, regardless of how we understand the sugya of rodef.

First, we can argue that no, the din of rodef does not apply according to all three reasons offered s to why one is allowed to kill a rodef.

1. If the reason we can kill a rodef is that the rodef is chayiv missah because we view it as if he already performed the act of murder, then a person is not chayiv missah for killing a treifah; as such, the rodef would not be chayiv missah.

And if the heter to kill a rodef is a din in rishus ha’gavra, this might not apply when the actual aveirah is not as severe.

2. If the din of rodef is to save rodef from the aveirah of murder, perhaps there is no aveirah of murder by a treifah; and even if there is an aveirah of retzichah, perhaps it is still only a less severe form of the issur, and thus is wouldn’t satisfy the requirement needed in order to allow us to kill a rodef.
3. If the din of rodef is saving the life of the nirdaf, perhaps a treifah is not deemed enough of a life to allow us to kill a rodef. (Perhaps only a “full life” warrants the heter to kill a rodef in order to save a nirdaf.)

We can also argue that yes, the din of rodef does apply according to all three reasons.

1. It would be very unlikely that this din applies if the din of rodef is that we view it as if he already performed the act of murder. However, if the din is rishus ha’gavra and we kill him for attempting to murder, we might be able to suggest that as long as there is an evil act being done, even if it is not the type of act that would normally warrant a chiyuv missah, it might satisfy the requirement of the din rodef.
2. It is possible that as long as there is a aveirah of murder being committed, this might be enough to qualify as a din rodef; even if the murder is not severe enough to warrant a chiyuv missah.
3. There is still a chiyuv to save the life of a treifah. The question, however, is whether the life of a treifah is enough of a “life” to justify the unique din of killing a rodef in order to save the nirdaf. Thus, the more we value every second of life, the more likely we are to suggest that the normal din of hatzalas ha’nirdaf can apply to a treifah as well.

6. Katan

The Gemara (Sanhedrin 72b) states that a katan (a minor; under the age of 13) can be considered a rodef, just like a gadol.

If a minor was pursuing another person in order to kill him, the pursued party may be saved with the pursuer’s life.

The question arises: a katan is not chayiv missah if he kills someone. As such, how does this fit in with our analysis of the din of rodef?

The main question to address is why a katan is not chayiv missah for killing someone. Presumably, it is because he does not have the required level of da’as (intellectual awareness) to create the type of ma’asah aveirah necessary to receive the death penalty. Thus, when it comes to the din of rodef, we would either need to say that da’as in not required to qualify as a rodef, or that even a katan has enough da’as to qualify as a rodef. (If the latter is the case, then we would need to say that in a court of law, we require a higher level of da’as in order to convict someone of being chayiv missah for murder.)

Let us analyze this in greater depth and see how this fits into our previous discussion of the din of rodef:

1. Chayiv Missah

Rashi (Sanhedrin 72b) suggests that there is a special din regarding a rodef where we consider the katan to be as if he is a gadol. Thus, while the katan is involved in the act of redifus (pursuit), and he still has the status of a rodef, he would have the din missah on him. However, in beis din, a katan would not be chayiv missah for murder.

But why is a katan is not chayiv missah for killing someone and what changes by the din of rodef?

Perhaps a katan is not chayiv missah for killing someone because he does not have the required level of da’as (intellectual awareness). Thus, when it comes to the din of rodef, we would either need to say that:

1. A) Da’as in not required by a rodef. (Rodef is a special din/category.) One explanation for this is to suggest that a katan who kills someone still violates the issur of murder, but the pittur in beis din is only from the onesh (punishment) in beis din (of being chayiv missah), not from violating the aveirah Thus, for the din of rodef, we consider it as if he already performed the murder, and this would be enough of a din missah to allow us to kill the rodef, even though it wouldn’t allow us to convict the katan in court.
2. B) Even a katan has enough da’as to qualify as a rodef; by engaging in this type of act, the katan shows that he has at least some form of da’as. However, in a court of law, we require a higher level of da’as in order to convict someone. (A third option is that a katan gains the full status of a bar da’as while he is still a rodef, but the moment the act of redifus ends, he reverts back to being a katan and loses this status. Thus, only while in the act of being a rodef can we kill the katan, because only while still in the act itself does he have the status of a bar da’as.)

2. Saving the Rodef from the Aveirah

Again, if we take Rashi’s approach that we treat the katan like a gadol while he has the status of a rodef, then the katan would be violating the issur of murder if he succeeded in his act, even if he wouldn’t be convicted in beis din for it.

And even without Rashi’s chiddush, just because a katan is not chayiv missah in beis din when he commits an act of murder does not necessarily mean that he doesn’t violate the issur or retzicha when committing murder. Thus, in general, there could be a pittur

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